Dukha Lal Chaudhuri vs Mt. Manabati and others

James, J.—This second appeal arises out of a suit for arrears of rent in respect of an istimarari mukarrari tenure in the Bhagalpur District. It appears that a few years ago the land of the tenure was submerged by the westward movement of the Kosi river, and that the land has only recently reformed. The defendant-tenure-holder took the objection that so long as his land was in the condition created by the destructive action of the Kosi river, he was not liable to pay rent. A commissioner was appointed who found some scrub jungle on the land. He found also that some part of the land was again being cultivated; but he expressed the opinion which was accepted by the trial Court that no part of the holding had been cultivated during the years in suit, 1335 to 1338 Fs. The Munsif completely disallowed the plaintiff''s claim for rent; but the learned District Judge on appeal, in view of the fact that some profit could be made of jungle land for the purpose of grazing, for which the tenant could be required to pay rent, assessed four annas a bigha as fair and equitable rent for the tenure during the years in suit, 1335 to 1338 Fs. The plaintiff has appealed from that decision claiming his full mukarrari rent, while the defendant has preferred a cross-objection claiming complete abatement of rent.

There is no doubt that under S. 52 (1) (b), Ben. Ten. Act a tenure-holder is entitled to reduction of rent in respect of land which formed part of his tenure and has permanently or temporarily ceased to exist as a result of fluvial action; and although S. 38, Ben. Ten. Act, refers to occupancy tenants only, it has been held by this Court in Sukhraj Rai v. Ganga Dayal Singh, 1922 Pat 169 - 63 I C 219 = 6 P L J 665, that any tenant is entitled to abatement of rent so long as his land which has suffered by fluvial action remains uncultivable. On the authority of this decision which has always, so far at I know, been followed in this High Court, the right to abatement of rent which the tenure-holder obtains by the destruction of the whole or part of his tenure will remain so long as the land is uncultivable and covered with sand. The only question which arises for decision in this appeal is that of whether when the land has so far recovered that partial use can be made of it; that is to say, that it cannot be used for the purpose for which the tenure was created, but some use of a less profitable kind can be made of it, the tenure-holder should be held liable to pay as fair and equitable rent something less than the rent fixed by his kabuliat, or whether his right to abatement should be held to endure until the land has completely recovered and can be brought under cultivation. In my judgment the decision of the Munsif on this point was correct. None of the land was fit for cultivation during the years in suit; and there is no finding that any profit was made from the jungly growth which appeared on the sand as the first stage towards the land''s return to its normal condition of being capable of cultivation. The learned District Judge on the assumption that some use might have been made of the jungle has assessed what he regards as fair and equitable rent of four annas a bigha but I do not find anything in the Bengal Tenancy Act which warrants assessment of fair and equitable rent at reduced rate for a permanent tenure held at fixed rent. The tenure-holder is entitled to abatement of rent until the effect of the submersion of his land has passed away, that is to say till the land becomes cultivable or otherwise valuable, to abatement of the whole as long as the whole area is submerged and to abatement of a part under S. 52 (4), Ben. Tenancy Act, so long as any land remains lost within the meaning of that sub-section. He is not a tenant of the class who has to pay fair and equitable rent for his tenure at any stage; his rent is entirely the creation of contract. Since it appears in this case that during the years in suit no part of the holding was cultivable, I consider that the decition of the Munsif was correct and the suit was properly dismissed. I would accordingly dismiss this appeal and allow the cross-objection, setting a side the decree of the District Judge and restoring the decree of the Munsif. The defendant-respondent is entitled to her costs throughout. Leave allowed to appeal under the Letters Patent.